During a course of hearing on a bail application in a case under the Protection of Children from Sexual Offences Act (POCSO Act), the Jharkhand High Court upbraided the Investigating Officer for not making the victim a court witness (Anil Kunwar v. State of Jharkhand).
While hearing a bail application of an accused under Sections 341 (Wrongful restraint), 323 (Voluntarily causing hurt), 376(Rape), and 511(attempting to commit offences punishable with imprisonment for life) of the Indian Penal Code along with Section 8 (Punishment for sexual assault) of the POCSO Act, the court made these examinations. Advocate Sudhanshu S Choudhary showed up for the Petitioner and Assistant Public Prosecutor Nawin Kumar represented the state. The victim is a girl aged about 13 years and her statement was recorded before a magistrate. Although, Counsel for the petitioner informed the court that the victim was neither examined nor she was made a charge sheet witness in the case. After being well-acquainted with the facts, the Court declared that the acts of the authorities cannot be called bonafide.
Justice Anand Sen remarked that the trial court had written to police authorities in the case, including Director General of Police, Jharkhand to get the victim as a court witness. On being incapable to do so, the Court noted, “These facts create doubt in the mind of the Court. Is the police authority taking the side of the accused persons by not bringing the victim in the witness box, prima-facie this court feels so?”
The court further stated that such inaction amounts to contempt of court. The order enunciated, “The questions are bound to arise if this type of investigation is made, leaving out the main person as a witness in the charge sheet. Further, when the court directed to produce the victim, these officers shut their ears and did not even respond to the directions of the court. The letter of a court is not merely a letter. It is a direction upon the authority to do what has been mentioned in the said letter. The letter is preceded by judicial order. By not doing so and by not responding to those directions, prima-facie, this court feels that the officers have committed contempt of court.”
- Consequently, the Court directed the Director-General of Jharkhand Police to investigate the case and respond to the following queries:
1. As to why the victim was not made a charge sheet witness.
2. Who is responsible for not making the victim a charge sheet witness.
3. If the DGP finds that to date no responsibility has been fixed, the DGP will fix the responsibility and will furnish information to this Court and he shall also inform this Court as to What steps have been taken against those persons because of whose laches the victim has not been shown as charge sheet witness.
4. Why the Superintendent of Police, Sahebganj, and DIG, Dumka have not responded to the directions/ letters of the Court which directs the officers to produce the victim as a court witness.
5. What steps the DGP himself has taken to ensure production of the victim before the Court below pursuant to the order dated 16.01.2020 and letter dated 27.01.2020, which the court below has to address to him for production of the victim.
6. What steps DGP intends to take against the erring officials who have not produced the victim before the court so that her evidence could be recorded.
7. Why not a contempt proceeding be initiated against the Investigating Officer, Officer-in-charge Mirzachouki P.S., Sahibganj, the Superintendent of Police, Sahebganj, and DIG, Dumka for willfully and deliberately violating the orders of the court wherein the trial court had directed them to produce the victim as a witness.”
The court will place the next hearings again in four weeks.
